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The South Korean Supreme Court ruled that refusing to hire a working parent who declines to work early-morning hours and holidays constitutes wrongful termination. The court cited legal provisions that require business owners to support employees’ child care, effectively concluding that business owners have a duty of care when it comes to working parents.

As this is the Supreme Court’s first ruling that pertains to the Equal Employment Opportunity and Work-Family Balance Assistance Act, it is likely to set a precedent for future rulings.

The case revolved around a woman who has been raising two children, aged five years apart, while working as an operator of a highway tollgate since 2008. Because she’s a working mom, her employer had exempted her from early morning shifts (6 am-3 pm). Under normal circumstances, employees were expected to work three to five early-morning shifts a month.

Standard day shift workers like the woman, as opposed to rotating shift workers, are normally given public holidays off. These baseline conditions that allowed working parents like the woman to balance work and home life were protected until April 2017, when the staffing agency that hired her changed. At the time, the woman’s children were 1 and 6 years old, respectively.

The new agency kept existing tollgate workers in a three-month probationary period before converting them into regular employees. The woman’s new employer scheduled her to work early morning shifts and leave her shift when she needed to drop her kids off at daycare. The contractor also demanded that she work public holidays.

When the working mother protested that she couldn’t alter the schedule she’d maintained for so long, at such short notice, her new employer responded by preventing her from leaving her post during early morning shifts. The woman refused to work early-morning shifts and public holidays for the two months that followed. When the three months of her probationary period were up, the contractor simply refused to hire her as a regular employee.

In July 2017, she applied for wrongful termination relief at the local branch of the National Labor Relations Commission, whose central headquarters ultimately determined that she had been wrongfully terminated by being denied employment. The company, however, retaliated with a lawsuit.

While the court sided with the woman in the first trial, the appellate court ruled in favor of her former employer, arguing that considerations must be made for the business’s need to collect tolls 24 hours a day. But the second petty bench of the Supreme Court reversed and remanded the case to the court of first instance.

Article 19-5 of the Equal Employment Opportunity and Work-Family Balance Assistance Act stipulates that an employer must make efforts to take necessary measures to adjust working hours for employees raising children 8 years or younger in order to support child care. The Supreme Court extrapolated from the law’s stipulation that employers “shall endeavor” to take prescribed measures to support child care a “duty of care” on behalf of the employer, and thus found that the woman’s employer had not carried out this duty of care in her case.

“It cannot be seen that a working parent must bear the entire burden for issues with work that arise on account of the burdens of child care,” the Supreme Court said in its ruling.

An official with the court called this “the first verdict that deduced and stipulated a ‘recognition of employers’ ‘duty of care’ from the provision of ‘shall endeavor.’” The same official also reported that this was the first time a standard for determining the specific degree of the duty of care shouldered by employers.

By Lee Ji-hye, staff reporter

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